Administrative Law Commons^™

The Role Of The Courts In Guarding Against Privatization Of Important Public Environmental Resources, Melissa K. Scanlan

Michigan Journal of Environmental & Administrative Law

Drinking water, beaches, a livable climate, clean air, forests, fisheries, and parks are all commons, shared by many users with diffuse and overlapping interests. These public natural resources are susceptible to depletion, overuse, erosion, and extinction; and they are under increasing pressures to become privatized. The Public Trust Doctrine provides a legal basis to guard against privatizing important public resources or commons. As such, it is a critical doctrine to counter the ever-increasing enclosure and privatization of the commons as well as ensure government trustees protect current and future generations. This Article considers separation of powers and statutory interpretation in …

Foreword: Rulemaking, Democracy, And Torrents Of E-Mail, Nina A. Mendelson

Articles

This Foreword is meant as an initial foray into the question of what agencies should do with mass public comments, particularly on broad questions of policy. Part I discusses the extent to which congressional control, presidential control, and agency procedures themselves can ensure that agency decisions are democratically responsive. In view of shortcomings in both congressional and presidential control, I underscore the need to focus closely on rulemaking procedures as a source of democratic responsiveness. The possibility that agencies may be systematically discounting certain public submissions raises difficulties, and I present some examples. Part II makes a preliminary case that …

Another Word On The President's Statutory Authority Over Agency Action, Nina A. Mendelson

Articles

In this short symposium contribution, I attempt first to add some further evidence on the interpretive question. That evidence weighs strongly, in my view, in favor of Kagan's conclusion that the terminology does not communicate any particular congressional intent regarding presidential directive authority. Assessed in context, the "whole code" textual analysis presented by Stack does not justify the conclusion that Congress, by delegating to an executive branch official, meant to limit presidential control. Independent agencies excluded, interpreting the terms of simple and presidential delegations to speak to directive authority fails, in general, to make sense of the various statutes. Absent …

Disclosing 'Political' Oversight Of Agency Decision Making, Nina A. Mendelson

Articles

Scholars and courts have divided views on whether presidential supervision enhances the legitimacy of the administrative state. For some, that the President can supervise administrative agencies is key to seeing agency action as legitimate, because of the President's accountability to the electorate. Others, however, have argued that such supervision may simply taint, rather than legitimate, an agency action. The reality is that presidential supervision of agency rulemaking, at least, appears to be both significant and opaque. This Article presents evidence from multiple presidential administrations suggesting that regulatory review conducted by the White House's Office of Management and Budget is associated …

Regulatory Beneficiaries And Informal Agency Policymaking, Nina A. Mendelson

Articles

Administrative agencies frequently use guidance documents to set policy broadly and prospectively in areas ranging from Department of Education Title IX enforcement to Food and Drug Administration regulation of direct-to-consumer pharmaceutical advertising. In form, these guidances often closely resemble the policies agencies issue in ordinary notice-and-comment rulemaking. However, guidances are generally developed with little public participation and are often immune from judicial review. Nonetheless, guidances can prompt significant changes in behavior from those the agencies regulate. A number of commentators have guardedly defended the current state of affairs. Though guidances lack some important procedural safeguards, they can help agencies supervise …

Chevron And Preemption, Nina A. Mendelson

Articles

This Article takes a more functional approach to reconciling preemption doctrine with Chevron when Congress has not expressly delegated preemptive authority to an agency, an approach that considers a variety of concerns, including political accountability, institutional competence, and related concerns. The Article assumes that federalism values, such as ensuring core state regulatory authority and autonomy, are important and can be protected through political processes." It argues that although Congress's "regional structure" might hint at great sensitivity to state concerns, it actually may lead Congress to undervalue some federalism benefits that are more national in nature. Meanwhile, executive agencies generally have …

Agency Burrowing: Entrenching Policies And Personnel Before A New President Arrives, Nina A. Mendelson

Articles

This Article examines executive branch agency actions concluded just before a new President takes office, such as "midnight" rulemaking and late-term hiring and promotion, which Professor Mendelson collectively refers to as "agency burrowing." Congress, the media, and some commentators have portrayed such activities as unsavory power grabs that undermine the President-elect's ability to direct the functions of administrative agencies. Rather than dismissing agency burrowing out of hand, however, Professor Mendelson argues for a more nuanced approach. In some cases, burrowing can make positive contributions to the democratic responsiveness of agencies, agency accountability, and the "rule of law." A fuller analysis …

Procedural Due Process In Administrative Law: Some Thoughts From The French Experience, Richard L. Herrmann

University of Michigan Journal of Law Reform

As administrative law has grown so have the suggestions for change and reform. During the last thirty years a recurrent proposal has been that Congress create a federal administrative court. The first such bill was introduced in 1933 by Senator George Norris. In the same year the American Bar Association also championed the creation of such a court. Bills advocating an administrative court were again introduced in the Seventy-Fourth, Seventy-Fifth, and Seventy-Sixth Congress. The most recent proposal came in 1949. None were ever passed.

Comparative Conflict Resolution Procedures In Taxation: An Analytic Comparative Study, L. Hart Wright, Jean Van Houtte, Pierre Kerlan, Helmut Debatin, James Arthur Johnstone, H. Schuttevaer, Elizabeth G. Brown

Michigan Legal Studies Series

Tax administrators in well developed countries rarely have either occasion or opportunity to compare experiences or exchange opinions regarding procedures and practices utilized in administering complicated tax laws. Moreover, there is little comparative literature on the subject. Even the tax institutes which are internationally oriented usually focus on substantive tax principles, not procedures and practices. Hopefully, therefore, administrators in highly developed countries will find useful this analytic comparison of practices and procedures through which six of their number resolve disputable income tax questions -administratively and judicially.

Concern for tax administrators in well developed countries, however, was not the prime motivation …